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Brown v. Joseph McCormick Construction Co.

United States District Court, W.D. Pennsylvania

April 17, 2015

SHANEEKA BROWN, Administratrix of the Estate of LORETTA MULDREW, Plaintiff,




Plaintiff Loretta Muldrew ("Plaintiff") initiated this civil action on January 29, 2014 against her former employer, Joseph McCormick Construction Co. ("McCormick Construction"), and Owen McCormick ("McCormick"), the company's owner (collectively, "Defendants").[1] In the operative complaint, Plaintiff asserts that she suffered discrimination, retaliation, and wrongful termination on account of her race, gender and disability in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq. ("Title VII"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and 42 U.S.C. § 1981 ("Section 1981"). She also alleges that the Defendants violated the Equal Pay Act, 29 U.S.C. § 206, the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA"), and the Pennsylvania Prevailing Wage Act, 43 P.S. § 165-5 ("PPWA").

Presently pending before the Court is Defendants' Third Motion to Dismiss (Docket No. 33), Plaintiff's Brief in Opposition (Docket No. 38), and Defendants' Reply Brief (Docket No. 40).[2] For the reasons set forth below, Defendants' Motion to Dismiss will be GRANTED.


Plaintiff, an African-American female, commenced employment with McCormick Construction as a flagger and general laborer on June 5, 2005 at a starting rate of $7.45 per hour. (Docket No. 31 at ¶¶ 7, 26(a)). Between 2005 and 2011, Plaintiff's hourly pay rate rose to $9.00 per hour. ( Id. ) Plaintiff contends that her white co-workers who performed similar jobs were paid at the beginning rate of $10.00 or $12.00 per hour. ( Id. at ¶ 9, 26(b)). Plaintiff also contends that white co-workers were afforded more breaks, training, and opportunities to work on higher-paying jobs. ( Id. at ¶¶ 9, 26(c)-(d)).

At some point during her employment, Plaintiff complained to McCormick and Robert Gwinn, [3] her supervisor, concerning her belief that she was being treated in a discriminatory fashion and that she was being exposed to toxic and hazardous conditions in the workplace. ( Id. at ¶¶ 9-10). Plaintiff does not indicate when she lodged these complaints or how McCormick and/or Gwinn responded, if at all.

Plaintiff was diagnosed with lung cancer at some point in 2010 or 2011. ( Id. at ¶¶ 16-17). On October 17, 2011, Plaintiff went on medical leave so that she could seek treatment for her cancer. ( Id. at ¶¶ 16, 19).

On April 3, 2013, Defendants sent Plaintiff a letter informing her that her employment had been terminated because she could not provide the company with a date on which she would be able to return to work. ( Id. at ¶¶ 20, 42). As a result of her termination, Plaintiff lost her only source of insurance coverage. ( Id. ) Around this same time, Plaintiff relocated to Arkansas to live with her daughter and continue to seek cancer treatment. ( Id. at ¶ 21). She passed away on June 21, 2014. ( Id. )


Plaintiff initiated the instant action on January 29, 2014. (Docket No. 1). At that time, Plaintiff had filed an Intake Questionnaire with the United States Equal Employment Opportunity Commission ("EEOC") but had not yet received a right-to-sue letter. (Docket No. 31 at ¶ 22). Plaintiff's Intake Questionnaire, filed on November 14, 2013, failed to include contact information for her employer and did not state any factual basis for her claims. (Docket No. 11-1). Consequently, Defendants moved to dismiss the original complaint on the basis that Plaintiff's claims had not been administratively exhausted at the agency level and otherwise failed to state a claim for relief. (Docket No. 7).

Plaintiff responded by filing a substantively identical Amended Complaint. (Docket No. 14). Defendants again moved to dismiss, arguing that Plaintiff's Amended Complaint had not cured any of the deficiencies identified in their prior motion. (Docket No. 17). The Court granted that motion on August 8, 2014, after concluding that Plaintiff had not administratively exhausted several of her claims and that her allegations fell short of the pleading requirements of Iqbal and Twombley. ( Id. at 14-15). The Court noted, however, that Plaintiff's responsive brief appeared to suggest that "further interactions with the EEOC may have taken place and that a formal charge may have been finalized within 300 days of the date of her termination." ( Id. at 9 n.3). In light of this possibility, the Court granted Plaintiff leave to file another amended complaint. ( Id. at 15).

On September 3, 2014, the EEOC issued Plaintiff a right-to-sue letter. (Docket No. 31 at ¶ 22; Docket No. 31-1). Plaintiff filed her Second Amended Complaint shortly thereafter. (Docket No. 25). That pleading utterly failed to comply with Rule 10(b) of the Federal Rules of Civil Procedure, prompting Defendants to file a motion to strike. (Docket No. 26). The Court granted that motion on November 20, 2014, and ordered Plaintiff to amend her complaint yet again. (Docket No. 30).

On December 5, 2014, Plaintiff filed her Third Amended Complaint. (Docket No. 31). Defendants filed the instant motion to dismiss on December 19, 2014. (Docket No. 33). After Plaintiff initially failed to respond, this Court ordered Plaintiff to show cause as to why the action should not be dismissed. (Docket No. 35). Plaintiff's counsel responded to the show cause order by explaining that he believed Defendant's motion to be "without merit" and that it "did not warrant a Response." (Docket No. 38). Nevertheless, Plaintiff filed a responsive brief to the motion to dismiss on February 5, 2015. (Docket No. 37). Defendants filed a reply on February 23, 2015.[4] (Docket No. 40). This matter is now ripe for review.


A valid complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(2). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for all civil actions.'" Iqbal, 556 U.S. at 684. The court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Id. at 678-79. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citing Twombly, 550 U.S. at 555). The determination as to whether a complaint contains a plausible claim for relief "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 556). In light of Iqbal, the United States Court of Appeals for the Third Circuit has instructed that district courts should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true, " "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" ...

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